In the House – Wednesday 17 and Thursday 18 June 2020

On the final sitting days before the winter break, the Upper House elected a new Assistant President, considered a range of private members’ bills and motions and passed two items of government legislation. In addition there were further developments regarding a significant non-compliance with an order for the production of government documents.

Wednesday 17 June 2020

Election of Assistant President

On Wednesday the Legislative Council elected a new Assistant President. Three members were nominated:

• Mrs Courtney Houssos (Labor)
• Mr Rod Roberts (One Nation)
• Revd Mr Nile (Christian Democratic Party)

Two ballots were required as no member had a clear majority following the first ballot. Ultimately Mr Roberts was the successful candidate.

Congratulations to Rod Roberts, our new Assistant President!

 Private members’ business

Seventeen items of private members’ business were debated on Wednesday, including bills, orders for papers, general motions and the establishment of a select committee.

Bills

The following private members’ bills were debated on Wednesday:

Building Amendment (Mechanical Services and Medical Gas Work) Bill 2020

The bill was introduced on 3 June 2020 by Mr Buttigieg (Labor Party). The bill intends to ensure that mechanical services and medical gas works are appropriately licensed in order to prevent a repeat of the tragic events that took place at the Bankstown‑Lidcombe Hospital in 2016 when two newborn babies were administered a poisonous gas instead of oxygen.

Debate resumed on Wednesday with all members who spoke commending Mr Buttigieg for his advocacy on behalf of the Khan and Ghanem families, his work with the unions and industry and for his determination to see the law changed to ensure that this does occur again in New South Wales.

However, the Parliamentary Secretary, Mrs Ward, stated that the Government opposed the bill, indicating that notice had already been given in the Legislative Assembly for a Government bill to address the issue. Mrs Ward stated that the Government supported a strong regulatory framework for the licensing of persons who carry out medical gas work in New South Wales and this bill’s framework lacked the necessary detail to achieve this.

Non-government members argued that the Government was slow to act on the matter given that both the Victorian and Queensland Governments have already introduced legislation in their jurisdictions.

In reply, Mr Buttigieg reiterated the need to pass this legislation urgently. At the end of the second reading debate the bill was agreed to and forwarded to the Assembly for concurrence. The bill was considered in the Assembly on 18 June 2020 and was defeated at the second reading by division (44 votes to 40).

Water Management Amendment (Water Allocations—Drought Information) Bill 2020

The bill was introduced on 3 June 2020 by Mr Veitch (Labor) with debate resuming from that day. The     Government opposed the bill on the basis that it would incorporate the “worst drought on record” in all future modelling for water sharing plans with the result being less water available to households and businesses. The Government also argued that the bill would have a disproportionately negative impact on farmers.

The Shooters, Fishers and Farmers Party welcomed the bill’s intent, stating that more data should be used in the development of water management plans. However, the Shooters also argued that the bill  did not take into account all available data and moved an amendment to refer to the bill to Portfolio Committee No. 4 – Industry for inquiry and report.

Mr Justin Field supported the bill as introduced but also welcomed the inquiry referral as an opportunity to better help members understand the development of evidence-based water sharing plans. The Greens likewise supported the bill, and while their preference was for it to pass in its current form, nonetheless supported the inquiry referral.

The amendment to refer the bill for inquiry and report was agreed to on division (23 votes to 16). Portfolio Committee No. 4 – Industry is due to report back to the House by 31 July 2020.

Motions

The following general motions were debated and agreed to:

• Vandalism of public monuments (Ms Cusack, Liberal) – condemning vandalism of public monuments, recognising all parts of Australia’s shared history and supporting the preservation of the heritage of all cultures. The motion was amended to include the House’s unequivocal support for non-violent protest and political expression.
• Deaths in custody (Mr Roberts, One Nation) – noting statistics concerning deaths in custody, including that Aboriginal people comprised 12 per cent of deaths in custody between 1995 and 2019. The motion was amended to include additional statistics noting that Aboriginal people comprise 29 per cent of the total prison population, despite being only 3 per cent of NSW’s population.
• Regional Youth Taskforce (Mr Fang, Nationals) – affirming support for the role of and contributions made by the Regional Youth Taskforce and noting that its second meeting, which was held in April, took place via video conference due to COVID-19 restrictions.
• Puppy farms (Ms Hurst, Animal Justice) – acknowledging the need to address the problem of puppy farms, which the RSPCA has condemned for cruel and exploitive treatment of dogs in large scale commercial breeding operations.
• Night time economy (Mrs Ward, Liberal) – noting that Sydney’s night time economy will be a critical component of NSW’s recovery from the economic downturn caused by COVID-19 with many members speaking about the important work of the Joint Select Committee on this subject in 2019, chaired by Mrs Ward.
• Goromoi people’s sacred sites and artefacts (Ms Faehrmann, Greens) – noting that Shenhua Energy has started exploratory drilling for its open-cut coal mine on the Liverpool Plains and calling on the Government to ensure the mine does not destroy culturally significant artefacts.
• Restoration of Prevention of Cruelty to Animals Amendment (Restrictions on Stock Animals Procedures) Bill 2019 (Mr Pearson, Animal Justice) – restoring the bill which had been defeated previously and referring it to Portfolio Committee No. 4 – Industry for inquiry and report. The committee is due to report by 24 September 2020.
• Tomago Aluminium Shelter (Mr Latham, One Nation) – urging the Government to develop an energy security and employment plan for Tomago involving gas peaking plants.
• Impact of COVID-19 on the State’s economy (Mr Searle, Labor) – noting the negative impact of COVID-19 on the NSW economy and recognising that the State is experiencing record unemployment, particularly among women.
• First Nations People in Custody in NSW (Mr Shoebridge, Greens) – The motion was amended by the Opposition to change the primary focus of the inquiry from the oversight role performed by the Law Enforcement Conduct Commission proposed by the mover, to a range of matters relating to the high number of First Nations people in custody in New South Wales. The committee is due to report in March 2021.

Orders for papers motions

The following orders for Government papers were debated and agreed to:

1. Funding for independent disability advocacy services (Ms Boyd, Greens) – due 8 July 2020.
2. Recreational fishing around Sydney harbour (Mr Banasiak, Shooters, Fishers and Farmers) – due 8 July 2020.
3. Rules based environmental water (Mr Banasiak, Shooters, Fishers and Farmers) – due 29 July 2020.
4. TAFE underpayments (Mr Searle, Labor) – due 24 June 2020.

The following order for Government papers was debated and negatived:

5. Bushfire affected forests (Mr Field, Independent).

A further order for papers from Mr Graham (Labor) was agreed to during formal business regarding Western Habour Tunnel and Beaches Link Business Cases. This is discussed in greater detail below.

Thursday 18 June 2020

Debate on motion to censure the Leader of the Government

The day started with a lengthy debate on whether the Leader of the Government, Mr Tudehope, should be censured by the House for not providing documents in response to a series of orders for papers regarding the final business case and strategic business case for the proposed Western Harbour Tunnel and Beaches Link.

That morning, the Clerk  announced that no documents had been returned in response to the previous day’s order, with the Secretary of Transport for NSW certifying that to the best of his knowledge “no documents covered by the terms of the Order and lawfully required to be provided are held by Transport for NSW”.

Orders for these documents had been made by the House on 14 November 2019, 27 February 2020, 13 May 2020 and 17 June 2020, with the Minister addressing the House on 2 June 2020 to explain why the documents had not been produced. This latest motion sought to censure the Leader of the Government for non-compliance and called for the documents to be provided by 4 August 2020.

In moving the motion, Mr Graham (Opposition) noted that this was a serious case of non-compliance. In reaching this point, the House has moved slowly, in a considered manner, and given the Government many opportunities to produce the required documents. Mr Graham argued that the business cases do exist as they had been discussed in a 2019 media article. Mr Graham stated that the motion was not intending to censure Mr Tudehope in a personal capacity, but rather in his capacity as Leader of the Government representing the Government in the Legislative Council.

In defending the Government’s position, Mr Tudehope noted a technicality in the most recent orders regarding the date of creation of the documents ordered, the inference being that the documents being sought may have been created before this specified date. Mr Tudehope also argued that even if date was correct, the Government has an obligation to get the best possible outcome for the taxpayers of New South Wales in relation to this project and therefore the commercial and sensitive nature of this material should not be in the public arena.

Mr Mookhey (Labor) moved an amendment to the motion to include an additional paragraph to clarify that the documents were required to be produced regardless of the date of their creation. A Government member (Mr Harwin) took a point of order that the amendment should be ruled out of order as, if agreed to, it would be unfair to censure the Leader of the Government for non-compliance and at the same time amend the wording of previous orders of the House.

After initially reserving his ruling, the President ruled the amendment out of order, stating:

I note that a censure motion is very serious and a censure motion of this nature may in fact be a preliminary step towards a more serious course of action. It is therefore imperative that any such steps be based on a sound and secure foundation and able to withstand scrutiny.

As the independent and impartial representative of this House, it is incumbent upon me to uphold the privileges of all members and the House. In making this ruling I am seeking to ensure the soundness of any decisions of the House in this important area of scrutiny of the Executive Government.

Following this, another Opposition member, Ms Sharpe, moved an amendment to remove the elements of the motion that would censure the Leader of the Government and instead again order the production of the documents, this time without the inclusion of a date of creation.

The amended motion was agreed to and the documents are due by 31 July 2020.

If the documents are not provided by this date, the Leader of the Government is required to explain his reasons to the House, which may be a precursor to further proceedings. Watch this space!

Disallowance debate – Environmental Planning and Assessment (COVID-19 Planning Bodies) Regulation 2020

Following the debate on the censure motion, the House proceeded to consider a motion by Mr Field (Independent) to disallow all references to “public hearings” in this regulation. The regulation was made on 30 April 2020 and is part of a suite of regulations and orders by the Government in response to COVID-19.

The regulation seeks to ensure that public hearings and public meetings of planning bodies may be held via audio or audio/visual link for the next 6 months during the COVID-19 pandemic. It affects planning bodies such as the Independent Planning Commission, Sydney district planning panels, regional planning panels, local planning panels and various panels established by the Minister for Planning or the Planning Secretary.

In moving the disallowance, Mr Field noted that public hearings are almost exclusively conducted by the Independent Planning Commission and amending this regulation would essentially only affect three projects in New South Wales, including the Vickery coalmine expansion and the Santos Narrabri gas project.

Mr Field stated that the intention of this motion was not to stop these projects, but to ensure proper public consultation can be undertaken. The Greens supported the motion with Ms Boyd noting that online public hearings are not an effective substitute for the real thing.

The Government and Opposition however opposed the motion. The Parliamentary Secretary, Mr Farlow, stated that the Government must be flexible during the COVID-19 pandemic and that this regulation is a reasonable and sensible step to ensure that the planning system can continue to function during these unprecedented times in order to support the New South Wales economy and create jobs.

Mr Searle (Labor) noted that these bodies should be able to conduct their deliberations in a virtual setting like other workplaces. He argued that most people in the community would find it laughable if New South Wales government bodies were not able to use online platforms for these purposes. The motion was defeated.

Digital Restart Fund Bill 2019

The Parliamentary Secretary, Ms Cusack, moved the second reading of this bill, which establishes a fund to provide for the digital and information communications technology required by the Customer Service cluster to deliver government services to the people of New South Wales.

Mr Mookhey contributed to the debate, stating the Opposition’s general support. However, he raised concerns around privacy and cybersecurity for those accessing online services as this has become increasingly important during the COVID-19 pandemic.

During the committee stage, Mr Mookhey moved four amendments to address concerns around privacy, and to require certain information relating to expenditure of budget to be included in annual reporting. The Government did not oppose the amendments, which were agreed to on the voices. The amended bill was returned to the Legislative Assembly for that House to consider the Council’s amendments.

State Revenue Legislation Further Amendment Bill 2019

This bill was the last item of business considered by the House before the winter recess. Received from the Legislative Assembly in February, the bill amends tax provisions in various Acts relating to discretionary trusts, landholder duty provisions, and stamp duty indexation in the First Home Buyers Assistance Scheme, to ensure that these legislative frameworks remain current, consistent and effective.

The bill passed the Council swiftly, with Minister Tudehope outlining the complex and broad range of provisions of the bill and Mr Mookhey (Labor) discussing the key provisions which seek to address anomalies in revenue legislation. Following these speeches, the bill was promptly agreed to by the House and returned to the Legislative Assembly without amendment.